J. and F. Batey v. Dykes

Subject_1 Reparation Subject_2 Wrongous Arrestment Subject_3 Repetition Subject_4 Issue. Facts: Action of damages for wrongous arrestment and of repetition of money paid in order to get arrestment loosed, in which issues adjusted.

“1. Whether, on or about the 14th and 15th days of July 1865, the defender wrongously, maliciously, and without probable cause, and for a debt not due by the pursuers, arrested the steamship or vessel called the Montrose, and sometime called the Lord Aberdour, of Newcastle-on-Tyne, the property of the pursuers, while lying in the harbour of Leith, and caused her to be dismantled, and detained in the said harbour of Leith—to the loss, injury, and damage of the pursuers?

Whether, on or about the 18th day of July 1865, the defender wrongously exacted and received from the pursuers the sums of money specified in the schedule hereto annexed, in order to have the said arrestments loosed and discharged; and whether the defender is resting Page: 147 ↓

The Court allowed the issues, except in regard to the first arrestment, which the pursuers consented to leave out of the first issue. They thought that the averment of a belief that malice existed was sufficient, but that the ambiguity had been cleared up by the insertion on revisal of the words “and averred.” In regard to the other objection it assumed the very question of fact which was to be tried.

As the relevancy of the action was objected to the Court, following the rule laid down in the recent case of Mackenzie v. Goldie ( ante , p. 101), found the defender liable in expenses since the date of closing the record.