Scottish Court of Session Decisions

The pursuer in this case, Thomas M'Meekin, was the granter of a bill of exchange, of which the defenders Robert Russell and Alexander Tudhope were respectively the grantee and the endorsee. The action was one of damages for wrongous apprehension and imprisonment, and the point now to be referred to related to the adjustment of issues. The following were the material averments of the pursuer:—Prior to the month of December 1877 the pursuer and the defender Russell, who are cousins, were in the habit of mutually accommodating each other by drawing and accepting accommodation bills. For this purpose they frequently signed and delivered to each other blank bill stamps, which were filled up and discounted by the receiver as he found it necessary. In accordance with this practice the defender Russell wrote the pursuer a letter, dated 25th July 1877, enclosing two blank bill stamps for the latter's signature. No value was given therefor, the documents being intended to be used only for Russell's accommodation. The defender filled up one of these bill stamps so that it bore to become due in or about the month of October 1877. When it fell due the pursuer, in order to take this bill out of the way, signed and delivered to Russell another blank stamp for the latter's accommodation as formerly. The pursuer's estates were sequestrated in December 1877, after which no further transactions of any kind took place between him and the defender Russell, and no bills or bill stamps have since been signed by the pursuer, either for the defender or any other person. The pursuer was discharged on payment of a composition in December 1879. The defender, although well aware of said se-questration, and of the whole proceedings there-in, never lodged any claim in respect of the bill for £100 after mentioned. In March thereafter

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the pursuer arranged to go with his family to Australia, and paid half of the passage-moneythe steamer being timed to leave on 31st March 1880. He had then in view lucrative employment abroad, and the defender Russell, who was aware of this, and of the pursuer's intention to leave Scotland, twice called upon the pursuer and urged upon him to arrange for payment of two bills which had arrived at maturity, and which had been drawn in accordance with the foresaid practice for the pursuer's accommodation prior to the sequestration. The pursuer absolutely declined to accede to the defender Russell's demands, and a quarrel arose in consequence between them. The defender Russell declared that he would prevent the pursuer from carrying out his intention of going to Australia, and asserted generally that he had within his power the means for effecting this. Nothing was said at either of these meetings, or at any time previously, by the defender to the pursuer as to the after mentioned bill alleged to be due on said 4th March 1880. “(Cond. 6) The pursuer was thereafter, without any further communication with the defender Russell, apprehended as after mentioned on his (Russell's) instructions as in meditation fugæ. The debt on which the proceedings were taken by the defender was set forth as a sum of a £100 contained in a bill alleged to have been drawn by the defender upon and accepted by the pursuer, and dated 1st March 1879, payable twelve months after date, and endorsed by the defender Russell to the defender Tudhope, who was said to be the then holder thereof. In the petition presented for the pursuer's apprehension and detention the defender Russell stated in his condescendence, inter alia, that the pursuer became indebted to him in said sum of £100 for which the bill was granted; that he endorsed the bill to the other defender Tudhope for value; that in the event of the pursuer failing to pay the contents the said defender Tudhope would fall back upon Russell for recourse; and that thus the defender Russell had an interest to apprehend and detain the pursuer. The petition in said fugæ proceedings was presented on 6th March 1880, by which time the pursuer had taken out and paid for the passage to Australia of himself, his wife, and children—a circumstance well known to both defenders, or at all events to the defender Russell. In order to accomplish this the defender Tudhope gave facilities to the defender Russell by reinstating the latter in the possession of the bill which was founded on and produced in the proceedings.” “(Cond. 7) The defender Russell was thereafter examined by the Sheriff-Substitute of Lanarkshire at Airdrie, and deponed to the truth of the statements made by him against the present pursuer, and specially that the pursuer was justly due to him the said sum of £100. The pursuer, on the other hand, deponed that the debt was not due, that he had no transactions with Russell subsequent to the date of his sequestration, and that at that date Russell held certain bill stamps signed blank by the pursuer, of which the one founded on was one, the same having been filled up after the pursuer's sequestration. The pursuer, who was arrested on these statements, and examined by the Sheriff-Substitute, was ordained on 8th March 1880 to be committed to prison till he found caution to remain in Scotland for two months, being a period beyond the date of his arrangements to leave Scotland.” “(Cond. 8) The pursuer never heard of said bill alleged to be due on 4th March 1880 until he was apprehended as aforesaid, nor was he ever asked for payment of its contents until he was in custody and within the precincts of Airdrie Court-house, where it was presented at the instance of the defender Tudhope, who in turn had got it back for this purpose from the other defender Russell. Thereafter the defender Tudhope protested the said bill, and caused it to be recorded and published against the pursuer. Both the presentation of said bill at the time and place specified and the subsequent publication of the protest by the defender Tudhope were illegal acts, and were wrongously and maliciously done with the view of securing the pursuer's detention in the event of the defender Russell failing in his fugæ proceedings. For these acts the defender Tudhope is liable in damages to the pursuer along with the defender Russell.” “(Cond. 9) The pursuer believes and avers that the bill on which said proceedings were taken was really one of the blank bill stamps mentioned above, and which was filled up by the defender Russell or his son at his request in March 1880, or at all events long after the pursuer's sequestration. The pursuer further believes and avers that this was done by the said defender, and the whole of the proceedings in meditationefugæ taken by Russell, most wrongously and maliciously, for the purpose of extorting money from the pursuer which he was not actually due—a circumstance known also to the other defender Tudhope, and to his law agent, Mr Robert Mure, writer, Lanark, who also acted as agent for Russell.” The pursuer further averred, on the information and statement of the defender Russell, as set forth in another action relating to the bill, that the said bill was endorsed by him (Russell) to the other defender Tudhope, without recourse, previous to the date of said proceedings against the pursuer as in meditation fugæ, that it was not presented for payment till after the fugæ proceedings were depending, that it was not protested as against him (Russell), and that he received no notice of its dishonour. “(Cond. 11) The pursuer was, as the defenders well knew, or at all events as the defender Russell well knew, due nothing to them, or either of them, when said proceedings were adopted against him, and the statements on which the defender Russell obtained said warrant for the pursuer's imprisonment were false, and were made by the defender Russell, most wrongously, unjustly, and maliciously, and in the knowledge that they were false, for the purpose of securing the pursuer's imprisonment, in the hope that the defender would thereby extort money from the pursuer to which he was not ma any ground entitled.” “(Cond. 12) In consequence of said proceedings the pursuer forfeited the passage-money paid as aforesaid, while he and his wife and family have been prevented from taking advantage of the lucrative prospects then before them abroad. Besides, the pursuer himself has suffered seriously in his feelings and person by his incarceration in Airdrie Prison, and by the other wrongous use of diligence done against him and his estate at the instance of the defenders. The loss and damage thus sustained by the pursuer is moderately estimated at

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the sum of £1000 as concluded for, and for this the defenders are jointly and severally, or severally, liable to him.”

The defender Russell admitted that the pursuer had been arrested as in meditations fugæ, but he averred that the bill had been “granted by the pursuer to the defender for full value in money advanced by the defender to the pursuer, on or about its date, for the purpose of enabling the pursuer to obtain or assist him in obtaining his discharge on a composition.” The other defender (Tudhope) admitted that he had handed the bill back to Russell as alleged, but he explained that he was no party to Russell's proceedings, and knew nothing about the prior history of the bill, of which he was onerous endorsee. Both defenders denied that the bill had been endorsed without recourse.

The pursuer pleaded—“(1) In the circumstances stated as to the origin and history of the bill founded on, the pursuer is entitled to decree of reduction and declarator as concluded for. (2) The pursuer having been most wrongously and illegally apprehended and imprisoned, and otherwise subjected to the wrongous use of diligence at the instance of the defenders, as condescended on, and having suffered loss as stated in consequence, he is entitled to decree of payment against the defenders, jointly and severally, or severally, as concluded for. (3) Separatim, The bill in question having been endorsed by the defender Russell to the defender Tudhope without recourse, as condescended on, the defender Russell is liable to the pursuer in damages, as concluded for. (4) In any event, the pursuer is entitled to such decree of payment against the defender Russell.”

The defender Russell pleaded—“(1) The pursuer's averments are not relevant or sufficient to support the conclusions of the summons. (2) The pursuer's averments in relation to the bill in question can only be proved by the defender's writ or oath. (3) The pursuer's allegations, so far as material, being unfounded in fact, and his pleas being untenable, the defender ought to be assoilzied with expenses.”

The defender Tudhope pleaded—“(1) The pursuer's averments are not relevant or sufficient to support the action so far as directed against this defender. (2) The pursuer's allegation, so far as relating to this defender, being unfounded in fact, and his pleas being untenable, this defender ought to be assoilzed, with expenses.”

The Lord Ordinary ( Adam) approved of the following issues:—“(1) Whether the bill stamp on which the pretended bill is written was signed by the pursuer when altogether blank, or at least when blank in many of the essentials of a bill, and was delivered to the defender Robert Russell in that condition prior to the sequestration of the pursuer in December 1877? and whether the said bill stamp was filled up or caused to be filled up by the said defender, and was by him after the said sequestration of the pursuer wrongfully endorsed to the defender Alexander Tudhope, to the loss, injury and damage of the pursuer? (2) Whether on or about 8th March 1880 the pursuer was wrongfully apprehended at or near Coatbridge on an application at the instance of the defender Robert Russell against him as in meditations fugæ, to the loss, injury and damage of the pursuer? (3) Whether on or about 8th March 1880 the pursuer was brought before David Davidson Balfour, Esq., Sheriff-Substitute of Lanarkshire, at Airdrie, under the said application at the instance of the defender the said Robert Russell against the pursuer as in meditatione fives? and whether under the said proceedings in meditatione fugæ, and on the application of the defender Robert Russell (or of another or others for whom he is responsible), the pursuer was wrongfully incarcerated in the prison of Airdrie on said 8th day of March, and detained there as a prisoner till the following day by virtue of a warrant granted by the said D. D. Balfour, to the loss, injury and damage of the pursuer? (4) Whether the bill was endorsed by the defender Alexander Tudhope without recourse,’ and whether the defender Alexander Tudhope wrongfully re-delivered the said bill to the defender Robert Russell for the purpose of having the pursuer wrongfully apprehended and detained under said application as meditatione fugæ, to the loss, injury and damage of the pursuer? (5) Whether the defender Alexander Tudhope, on or about 8th March 1880, wrongfully protested, or caused the said bill to be protested, against the pursuer for non-payment, and thereafter wrongfully caused the said protest to be recorded in the Sheriff-Court Books of the county of Lanark, to the loss, injury and damage of the pursuer? “

Both defenders reclaimed.

Argued for Russell—Admitting that the pursuer's sequestration cut down the mandate to fill up the blank bill, there was nothing on record to preclude the idea that the mandate had been renewed after the pursuer's discharge. The bill was dated after the discharge. In any case there was no ground for having a separate issue for the wrongous apprehension and the wrongous imprisonment, and the damages under first issue ought to be limited to the amount of the bill.

Argued for the defender Tudhope—Tudhope was onerous endorsee of the bill. It was not averred that he knew the bill was an accommodation bill, assuming that that was its nature, nor that the bill had been signed and delivered blank prior to the pursuer's sequestration. In giving the bill to Russell, therefore, for the purpose of diligence, Tudhope did nothing that was not within his right, whatever the case might be as against Russell. The second and third issues ought to be disallowed.

Argued for the pursuer—The case against Russell was clear. What was averred was that he had filled up, or at least dated, the blank stamp after the pursuer's sequestration, but the sequestration had cut down the mandate to fill up the blank stamp. As regards the apprehension and the imprisonment being put in issue separately, the pursuer had no particular interest to insist on this being done in the present case. He had merely followed the practice— Ford v. Muirhead, 19th May 1858, 20 D. 949. Further, he could not object to the damages under the first issue being limited to the amount of the bill. As regards the other defender, the fair import of the record was that he was cognisant of the true nature of the bill, but even if he was not, he was not entitled to hand the bill back in the way he

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had done without making himself liable for the consequences. He knew that diligence was to be done on the bill.