Scottish Court of Session Decisions

Thomas Killin, clerk, 168 West George Street, Glasgow, Finlay M'Fadyen, of Rennie & M'Fadyen, 79 Robertson Street, Glasgow, Thomas Torrance Crossgrove, 32 Midlothian Drive, Shawlands, Glasgow, and Colin Campbell, 1313 Pollokshaws Road, Glasgow, raised an action in the Sheriff Court at Dumbarton against Alexander Clark Weir, residing at Woodburn, Helensburgh, Dumbartonshire, in which they sued for the following sums respectively, viz.—£100, £175, £150, and £50. They stated that in November 1903 the defender, being then resident in Johannesburg, South Africa, wrote to the pursuer Killin bringing under his notice and recommending as certain of success a gold-prospecting company known as the Hex River Main Reef Syndicate, Limited, and they made the following averments:—“(Cond. 4) In or about January 1904 the defender came to this country and called on the pursuer Thomas Killin. He then informed him that he had purchased £10,000 of the shares himself, and that the shares were lying in his name with the secretary. He further stated that there was £5000 of the capital of the Syndicate lying in the bank at Johannesburg to meet the cost of boring and testing the ground, and that a bore was in course of being put down which was expected to reach the reef in three or four months. As a further inducement to take shares the defender expressed his willingness to pay the expense of an engineer selected by the Glasgow shareholders going from this country to be present when the bore reached the reef and give his report. The defender was introduced to the other pursuers by Thomas Killin in or about said month of February, and made similar statements to them and others, including John Leiper Gemmill, Parklea, Dumbuck, Glasgow, as to his holding in the company being £10,000; that he purchased said shares; that £5000 of the capital of the Syndicate was actually in the bank for the purpose before mentioned; that a bore was being put down, and was expected to reach the reef in three or four months. All these statements were false and fraudulent, and were known to be so by the defender, and made by him to the pursuers and others with the express intention of inducing the pursuers and others to purchase shares in the concern. (Cond. 5) The pursuers, believing in the sincerity and truth of the defender's statements and assurances as aforesaid, were induced to purchase from the defender shares in the said syndicate as follows;—The said Thomas Killin, 100 shares at the price of £100; the said Finlay M'Fadyen 150 shares at the price of £175; the said T. T. Crossgrove 150 shares at the price of £150; and the said Colin Campbell 50 shares at the price of £50, for which they received certificates which will be produced. Several other friends of pursuers also took up a number of the shares, relying on the defender's statements to them as above.”

The pursuers pleaded—“(1) The pursuers having been induced by the false and fraudulent representations of the defender to purchase shares in the said company, they are entitled to repayment from him of the amounts respectively advanced to him, with expenses.”

On the 25th October 1904 the Sheriff-Substitute (P. J. Blair) issued an interlocutor allowing the pursuers a proof of their averments, and on the 9th December 1904 the Sheriff ( Lees) adhered to this interlocutor.

The defender appealed, and argued—The action was incompetent, for there were four independent pursuers suing for separate amounts of damages upon separate grounds of action. Killin sued on a statement alleged to have been made in January, and the other pursuers upon other statements alleged to be similar, but made in the month of February. The wrong alleged was not the same but different—Mackay's Manual of Practice, p. 135; Harkes v. Mowat, March 4, 1862, 24 D. 701; Gibson v. Mac—queen, December 5, 1866, 5 Macph. 113, 3 S.L.R. 83; Mitchell v. Grierson, January 13, 1894, 21 R. 367, 31 S.L.R. 301; Fischer & Co. v. Andersen, January 15, 1896, 23 R. 395, at p. 400, 33 S.L.R. 306.

Argued for the respondents—The action was competent, for the ground of action was the one misrepresentation. It had been repeated, but it was the same misrepresentation— Smyth v. Muir, November, 13, 1891, 19 R. 81, at p. 88, 29 S.L.R. 94. The community of interest was clear on the pursuers' statement, where it must be tested, and though one of the pursuers might have a separate fact to prove, that made no difference— Cowen & Sons, &c. v. Buccleuch, &c., November 30, 1876, 4 R. (H.L.) 14, 14 S.L.R. 189.