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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Muckarsie v. Fleming, &c. [1830] ScotJCR 5_Murray_296 (12 July 1830)
URL: http://www.bailii.org/scot/cases/ScotJCR/1830/5_Murray_296.html
Cite as: [1830] ScotJCR 5_Murray_296
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SCOTTISH_HoL_JURY_COURT
Page: 296↓
(1830) 5 Murray 296
CASES tried in THE JURY COURT, 1828 to 1830.
No. 35
v.
PRESENT, LORDS CHIEF COMMISSIONER AND
Finding for the defenders on a question of wrongful arrestment of funds, and giving a charge of horning after a sum of money was tendered.
An action of damages against an agent and his employer for arresting the funds of the pursuer, and giving a charge of horning for payment of the balance of a bill after the sum was tendered.
Defence.—The pursuer refused to deliver up to the agent a receipt said to be granted by the party for a partial payment.
“It being admitted, that on the 27th August 1827, the pursuer granted to the defenders, Fleming and Watson, a bill of exchange for the sum of L.49, 9s. 1d. and that on the 5th day of January 1828, there was a balance of L.32, 12s. 10d. due on the said bill:—
It being also admitted, that diligence was done on the said bill, and that arrestments were used by the said Fleming and Watson
Page: 297↓
Whether, on or about the 10th day of January 1828, the pursuer tendered payment of the said sum of L.32, 12s. 10d. the balance of the said bill, to the defender Archibald Walker, as the authorized agent, and acting for the defenders Fleming and Watson?—And whether the defenders, or any of them, wrongfully refused to accept the said sum of L.32, 12s. 10d. and to deliver up the said bill, and loose the said arrestments,—to the loss, injury, and damage of the pursuer?”
Robertson opened for the pursuer.—The defenders refused the sum tendered, and insinuated that the pursuer had altered a receipt from seven to seventeen, though he only stated it as seven.
Jeffrey D. F. opened for the defenders.—The only point here is, whether we wrongfully refused the money tendered? Our request to see the acknowledgment for the L.7 was reasonable, and the pursuer agreed to give it, but he departed from his agreement, and wishes to catch the defenders.
Page: 298↓
Lord Chief Commissioner.—This appears to me a very clear case. The facts appear from the admissions in the issue, and the question depends on the conduct of the one defender as agent for the other. It is clear that the pursuer went with the balance due on the bill, and if it had been a pure question on the tender, you would have had to consider whether damages were due or not. But there had been previous transactions between the parties, and it was a fit thing that the agent should get all the pursuer's receipts, that he might be able to show them to his constituents. The pursuer expressly agreed to give the receipt; and, therefore, the question is not whether his refusing to give it would have vitiated the tender. If he had given it, and the arrestment had not been taken off, there would have been a ground of action. The acceptance of the tender is clogged with a condition—he agrees to that condition—and if he had offered the receipt and the balance, and it had been refused, then it would have been a tender. The question turns on the wrongful refusal to accept,—the agent did not refuse, but proposed a condition, which was agreed to; but the pursuer gets bad advice, and does not fulfil his agreement; and can it in that case be said to be a wrongful refusal. The pursuer makes out
Page: 299↓
Verdict—“For the defenders.”
Counsel:
Robertson and W. Bell, for the Pursuer.
Jeffrey and Cheape, for the Defenders.
Solicitors: (Agents, John Johnson, and T. Leburn.)