Scottish Court of Session Decisions

On 29th November 1898 Mrs Annabella Duncan or Green, wife of Peter Green, farmer, Aberlour, with consent of her husband, raised an action of damages for £500 against William Grant, bank agent, Elgin.

The pursuer averred—“(Cond. 2) In or about the month of May 1893 the estates of the pursuer's husband, the said Peter Green, who was then a farmer at Delmore, Aberlour, were sequestrated, and the defender was appointed trustee on the sequestrated estates. The defender was discharged from the said office of trustee in 1894. (Cond. 3) The value of the farm stocking on the said farm of Delmore was valued by the said Peter Green in the state of his affairs at the sum of £71, 18s. 9d. The pursuer paid this sum to Messrs Sutor & Scott, solicitors, Elgin, as acting for the trustee, and the said farm was subsequently carried on by her under the supervision of the defender as trustee foresaid. In these circumstances the pursuer had frequently to call upon the defender on business connected with the farm. (Cond. 4) On or about the end of April or beginning of May 1894, the day of the week being Thursday, the pursuer had occasion to visit the defender at his office in Elgin for the purpose of getting grass seeds for the said farm. She called at the defender's office in the afternoon, and was shown into his business room. She explained to him what she wanted, and he went with her to Messrs Matheson Brothers, seed merchants, Elgin, and ordered the seeds. At the defender's request the pursuer returned with him to his office to discuss some business matters connected with the farm. They again went to the defender's business room. The pursuer sat on a chair, and defender stood with his back against the fireplace. After some talk about the farm, the defender suddenly went to the door of the room and locked it. He then returned and seized hold of the pursuer, pulled her from the chair on which she had been sitting, pushed her backwards against the wall, and forcibly put his hand up under her clothes. The pursuer struggled and screamed, and caught the defender by the hair of the head. She threatened to tell the defender's wife, and he then released her, and unlocked the door, and she left the office. The pursuer has never called on the defender since then, save in her husband's company. (Cond. 5) The pursuer was very much shocked at the defender's said conduct, and went home in a very nervous condition. Immediately on her return home she informed her husband, who expressed his determination of at once having amends. On consideration, however, it was thought better to avoid scandal, the pursuer and her husband being of opinion that if they kept silence on the subject nothing more would be heard of it. Shortly after the occurrence of said incident the pursuer also informed her husband's uncle and mother of what had taken place. (Cond. 6) In November 1898 the Caledonian Banking Company, acting on the advice of the defender and other creditors of the said Peter Green, took proceedings to have his sequestration revived and a new trustee appointed therein. Since these proceedings were instituted the pursuer has

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learned that the occurrence which took place in 1894, and which she thought was known only to the defender and members of her husband's family, has become public property, and has been and is being misinterpreted to the discredit of the pursuer. She has, since becoming aware of these facts, suffered much in her feelings. Her reputation has also suffered, and her friends and neighbours insist upon her taking steps to clear her character. The present action has thus been rendered necessary.”

The pursuer pleaded—“(1) The pursuer having been assaulted by the defender as condescended on, is entitled to reparation therefor.”

The defender pleaded—“(1) The averments of the pursuer are irrelevant, and insufficient to support the conclusions of the action. (2) The averments of the pursuer, so far as material, being unfounded in fact, the defender should be assoilzied, with expenses. (3) The action is barred by mora, taciturnity, and acquiescence. (5) The pursuer, in the circumstances, ought to be ordained to find caution for expenses.”

The pursuer proposed the following issue for the trial of the cause:—“Whether, on or about the end of April or beginning of May 1894, and in the defender's office in Elgin, the defender assaulted the pursuer, to her loss, injury, and damage? Damages laid at £500 sterling.”

On 25th January 1899 the Lord Ordinary ( Kincairney) pronounced the following interlocutor:—“Having heard counsel for the parties on the motion of the defender that the pursuer be ordained to find caution before proceeding further with the cause, Refuses said motion; further, approves of the issue No. 10 of process as adjusted and settled as now authenticated; and appoints the same to be the issue for the trial of the cause.”

The defender reclaimed, and argued—The husband of the pursuer had been sequestrated, and was still an undischarged bankrupt, and from the pursuer's statements it was plain that the action had no foundation, and was raised in consequence of spite. There was no relevant ground of damage stated on record, and the action should therefore be dismissed as irrelevant. In any event, the circumstances were such that the Court ought not to allow the pursuer to proceed with the action without finding caution. The matter of finding caution was entirely in the discretion of the Court, and if the Court were unfavourably impressed with the nature of the pursuer's case, they were entitled to ordain her to find caution— Maxwell v. Maxwell, March 3, 1847, 9 D. 797; Macdonald v. Simpson, March 7, 1882, 9 R. 696, opinion of Lord Young, 697; Teulon v. Seaton, May 27, 1885, 12 R. 971. The reasonableness of the demand that the pursuer should find caution was emphasised by the fact that the action had not been raised till four years after the alleged assault. Such a lapse of time amounted to mora— Jenkins v. Robertson, March 20, 1869, 7 Macph. 739; Cook v. North British Railway Co., March 1872, 10 Macph. 513; Collier v. John Ritchie & Co., November 4, 1884, 12 R. 47; Scott v. Roy, July 15, 1886, 13 R. 1173.

Argued for pursuer—The case of Horn v. Saunderson and Muirhead, January 9, 1872, 10 Macph. 295, ruled the present. In that case the pursuer's husband was a bankrupt, and yet the pursuer was found entitled to raise an action of damages without finding caution. The only case in which a pursuer who was not himself a bankrupt was not permitted to proceed with the action without finding caution was Teulon, supra. That was a very special case. The pursuer in that case was a married woman out of the jurisdiction of the Court and suing without the consent of her husband in a point concerning which certain trustees, who were the proper parties to sue, had refused to sue. Where the pursuer as in the present case was solvent, the mere fact of delay in raising the action was not a circumstance on which the Court would base the finding of caution. In Collier and Scott there were three circumstances which the Court founded on in requiring caution, viz., (1) bankruptcy, (2) delay, and (3) the fact that there was no explanation as to why so much time had been permitted to lapse before bringing the action. Here the pursuer was not bankrupt, and the reason of the delay had been properly explained. The case of Jenkins was an actio popularis in which men of straw were put forward, and that was the reason of the Court requiring caution to be found.