M'Meekin v. Russell and Another

Then as to the second and third issues, I cannot see why they should not be one. I cannot see any interest which the pursuer has to have two issues. There are some cases in which there is wrongous apprehension merely and no imprisonment, or there may be a doubt about the one and not about the other. But to have two issues in the present case would be a mere abuse of words.

Lord Mure—I agree that the first issue is a good one, and I also think that the second and third issues should be combined. On the fourth issue, however, I have had considerable doubt. My first impression was that Tudhope had been acting in concert with Russell throughout in full knowledge of the previous proceedings, and if that had been distinctly averred I should have been of opinion that the fourth issue should be allowed. In the sixth article of the condescendence it is stated that Russell caused the pursuer to be apprehended on a fugæ warrant, and “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.” Then in condescendence eight it is set forth how he proceeded, after giving the bill to Russell, to get it back again and presenting it for payment. And in condescendence nine it is averred that the pursuer further believes and avers “that this was done by the said defender, and the whole of the proceedings in meditatione fugæ 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 Muir, writer, Lanark, who also acted as agent for Russell.” Finally, in condescendence eleven it is said that 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.” Now, when I read these statements I was under the impression that Tudhope, though it was not very clearly averred, was throughout in the knowledge that these bills were accommodation bills. But I cannot now so read these averments. I am not prepared to differ.

On the fifth issue I have no difficulty. My objection applied only to the fourth issue.

Lord Shand—I am clearly of opinion that there is no relevant case here against Tudhope. I assume that Russell knew that he had no right to fill up the bill and put it in the circle, but as it is not alleged here that Tudhope was not an endorsee for value, I think he was entitled to do diligence on it. But Russell was also interested in diligence being done on it, because unless it was paid he would still be debtor in the £100 to Tudhope. In these circumstances I think that it is impossible to say that there is any case against Tudhope because he gave it back to Russell in the way alleged on record.

But I go further—even if Tudhope knew perfectly well about the bill I think he would not be liable. Russell got value for it, and he must either do diligence or give back the value. The mere circumstance that Tudhope knew that Russell was going to do diligence in a wrong way would not affect my opinion. Seeing that the fugæ proceedings were adopted by Russell in his own name on a bill which he was entitled to have in his own possession unless he gave Tudhope credit for £100. Whether Tudhope knew or did not know that the meditatione fugæ proceedings were to be adopted in the name of Russell has nothing to do with the use which Russell was to make of the bill.

In regard to the first issue I should myself have preferred that words limiting the damage to the contents of the bill should be added, but if your Lordships are satisfied that the issue may go to the jury in its present form I do not press my objection.