M'Intosh v Chalmers
| Jurisdiction | Scotland |
| Judgment Date | 17 October 1883 |
| Date | 17 October 1883 |
| Docket Number | No. 4. |
| Court | Court of Session |
Lord Kinnear. I., Lord Justice-Clerk, Lord Young, Lord Rutherfurd Clark.
Force and fear—Agreement—Writ granted in prison—Personal diligence.—
Agent and Client—Agent's hypothec.—
Held that a letter granted in gaol by a debtor, imprisoned on a warrant which was afterwards suspended, to his creditor, by which the debtor undertook, on condition of immediate liberation, to bring no action of damages against his creditor in respect of the imprisonment, was not binding on the granter, in respect that the charge on which imprisonment followed had been given in mala fide by the creditor, not to obtain payment of his debt, but for an ulterior end.
Opinions (per the Lord Justice-Clerk and Lord Young) that no deed granted in gaol in favour of the author of an illegal imprisonment by the victim of it will receive effect.
(Per Lord Rutherfurd Clark and Lord Kinnear) that a letter of indemnity granted by a person in gaol to one who has in bona fide caused him to be imprisoned, will bar an action of damages if the imprisonment shall afterwards be found to be illegal.
A letter granted by an imprisoned debtor to his creditor, undertaking that he would bring no action of damages in respect of his imprisonment, came into the possession of the creditor's law-agent. The debtor brought an action of damages concluding also for reduction of the letter. The creditor's agent, who had ceased to act for him, refused to deliver up the letter, pleading his right of hypothec. Opinions (per Lord Justice-Clerk and Lord Young) that he was not entitled to retain the letter.
William and Alexander M'Intosh, two brothers, carried on business in Leith together as wholesale spirit-merchants under the name of M'Intosh Brothers. Disputes arose between them, and they came to be in 1880 on very bad terms with each other. A bill at three months, drawn by the Distillers' Company, Limited, and dated 17th January 1880, for £289, 10s. 8d., was accepted by M'Intosh Brothers, and having fallen due, was protested for non-payment by the Distillers' Company; the protest was recorded in the Sheriff Court Books of Midlothian, and an extract obtained on 6th May 1880. Nothing further was done until 24th July 1880, when a new bill for £299, 14s. 10d., being the amount of the former bill with interest and expenses, was drawn by the Distillers' Company and accepted by Alexander M'Intosh, John M'Intosh, another brother, who was not a partner in the business, and Walter Chalmers. Chalmers was a commission agent in Leith, who had at one time been a traveller for the firm of M'Intosh Brothers, and afterwards had been appointed factor on some heritable property belonging to the firm in Leith. He had also advanced money to the firm, getting goods in security, and generally had concerned himself with the affairs of the company, assisting them in the difficulties in which, owing to the quarrels of the partners, and proceedings taken against the company by the excise, they had latterly become involved. He was particularly intimate with Alexander.
Alexander M'Intosh made an entry of the new bill in the books of the firm, describing it as drawn by Messrs M'Intosh Brothers and Walter Chalmers. On 4th August 1880 the Distillers' Company, in consideration of the sum of £294, 14s. 3d. ‘paid, or compensated to us by Walter Chalmers, commission agent, Yardheads, Leith, Alexander M'Intosh, merchant, Leith, and John M'Intosh, excise officer, Edinburgh,’‘at the desire and. request of the said Walter Chalmers, Alexander M'Intosh, and John M'Intosh,’ assigned ‘to the said Walter Chalmers and his heirs and assignees,’ the original bill accepted by M'Intosh Brothers, with the extract registered protest thereon, the sums due under the bill, with interest, ‘together with such farther sum or sums that may become due under said bill, and whole tenor and contents of said bill, and of the said extract registered protest and warrant thereon, together with all diligence and execution that has followed or may be competent to follow thereupon.’ On this assignation Chalmers charged William M'Intosh on 11th August, and on the 18th cast him into the prison of Edinburgh. On the 20th August Manson, clerk to David Forsyth, S.S.C., who was then acting as Chalmers' agent, visited M'Intosh in prison, on which occasion M'Intosh, at the request of Manson, signed a dissolution of the firm of M'Intosh Brothers, an agreement to hand over the assets of the firm to his brother, and a letter of indemnity to relieve Chalmers of all liability for damages in respect of his incarceration. M'Intosh was then set at liberty. Meantime a note of suspension and liberation had been presented for him against Chalmers as respondent; and in that process, after various steps of procedure, Lord Rutherfurd Clark, on 16th December 1880, suspended the charge.* On 16th February 1881 the Second Division affirmed this judgment.
William M'Intosh then, on 19th September 1881, raised an action against Chalmers, concluding for £3000; ‘and should it be necessary, in order to enable our said Lords to pronounce such decree as may seem to them to be just under the conclusions above written, decree of reduction should be pronounced, as hereinafter concluded for’; the letter of indemnity granted by the pursuer in gaol was then called for, that it might be reduced. By this time the letter of indemnity had passed into the hands of David Forsyth, S.S.C., who had now ceased to act as agent for the defender. Mr Forsyth being called on under a diligence to produce this letter, refused to give it up, pleading his right of hypothec over it for his business account against the defender. On 15th July 1882 the Lord Ordinary held production satisfied upon an inventory containing a description of the letter, and the case proceeded.
The pursuer pleaded;—(1) The defender having wrongfully, illegally, oppressively, and maliciously caused the pursuer to be charged and apprehended and detained in gaol, as condescended on, he is liable in reparation and damages. (2) The said other proceedings of the defender complained of being illegal, unwarrantable, malicious and oppressive, and the pursuer having suffered loss, injury, and damage thereby, the pursuer is entitled to reparation. (3) The said pretended letter of indemnity dated on or about 20th August 1880, having been impetrated from the pursuer by force and fear as condescended on, and in pursuance of said fraudulent scheme, it ought, if necessary to the ends of justice, to be reduced.
He averred that the defender had entered into a conspiracy with his brothers, Alexander and John, to have him removed from the firm, and that the bill transaction above narrated had been concocted between them to that end, that they might by making him notour bankrupt drive him out of the business, and that while he was imprisoned in pursuance of this conspiracy, the deeds signed by him had been impe-
trated from him by threats of continued imprisonment, of making him bankrupt, of selling his furniture and making his wife and family houseless, and generally by force and fear. He described the document of which reduction was sought as ‘a letter of indemnity bearing to free and relieve the defender of all responsibility for his share in these transactions, and of all liability for, inter alia, the imprisonment of the pursuer.’
The defender denied these averments, averring that he had himself paid the second bill to the Distillers' Company, and pleaded;—(2) The pursuer's averments are not relevant or sufficient to support the conclusions of the summons. (3) The diligence at the instance of the defender against the pursuer, being within the defender's legal right, the action, so far as founded thereon, is groundless and untenable. (4) The action is excluded in respect of the letter of indemnity sought to be reduced.
The Lord Ordinary, on 21st November 1882, found that the averments were not relevant to entitle the pursuer to an issue, and dismissed the action.*
The Second Division, on 9th. February 1883...
To continue reading
Request your trial
- Grovit v Jan Jansen
-
Regie Nationale Des Usines Renault Sa v Zhang
...It is necessary to say something of the provenance of these revisions of the Rules. Part 10, r 6A commenced on 1 July 1988. At that time, Pt 11, r 8 was in a different form; in particular, par (h) of r 8(1) did not appear. Part 11, r 8 assumed its present form on 19 February 1989. The New S......
-
Agar v Hyde; Agar v Worsley
...a good arguable case — Setting aside service — Refusal to exercise jurisdiction. Supreme Court Rules 1970 (NSW), Pt 10 rr 1A, 2 and 6A, Pt 11 r 8. On appeal from the Supreme Court of New South Wales 1 Gleeson CJ. These appeals raise the question whether a member of the board of a voluntary ......
-
Agar v Hyde; Agar v Worsley
...a good arguable case — Setting aside service — Refusal to exercise jurisdiction. Supreme Court Rules 1970 (NSW), Pt 10 rr 1A, 2 and 6A, Pt 11 r 8. On appeal from the Supreme Court of New South Wales 1 Gleeson CJ. These appeals raise the question whether a member of the board of a voluntary ......