AI-transcribed

Fraud. Where fraud enters into a contract, it destroys that consent which is requisite to render an agreement binding in law. Where, through the fraud of the one party, there is an error in essentialibus of the contract, consent cannot be said to have been given, and the contract is void ab initio, even in questions with the fraudulent party's bona fide onerous singular successors. But, even where such error does not exist, fraud giving rise to the engagement—dolus dans causam contractui—may be pleaded as a ground of reduction, or as a personal exception to an action for implement; though it will have no effect in questions with bona fide onerous assignees. Fraud incident to a contract—dolus incidens—only gives a claim for damages.

Definition source
AI-transcribed
Bell, William, A Dictionary and Digest of the Law of Scotland, 7th ed. rev. George Ross (Edinburgh: Bell & Bradfute, 1861), s.v. “Fraud.” Public domain.

Legal Subject: Fraud

Case Date Legal Subject Abstract
Air v. Johnston 1786 Debt, Bankruptcy, Fraud, Creditor, Disposition, Infeftment William Air, merchant in Coldstream and trustee for the creditors of Robert Johnston, baker and feuar there, petitioned to alter the Lord Ordinary’s interlocutor, citing that a heritable bond held by Thomas Johnston of Templehall was invalid under the Act of 1696. Johnston answered, defending his heritable security against the trustee’s claim that it was liable to be set aside.
Alexander Pagan and James Hunter v. Alexander Wylie 1792 Debt, Creditor, Bill of Exchange, Suspension, Aliment, Fraud Alexander Pagan and James Hunter, as suspenders, resisted Alexander Wylie’s claim upon a bill of exchange that had been altered from £8 to £84 after execution. Wylie, agent for the Paisley Union Bank, had discounted the bill for the higher amount and argued that the suspenders remained liable for the altered sum, while Pagan and Hunter maintained that such a material change precluded any charge against the original acceptor and indorser. The litigation centered on whether parties to a bill could be held responsible for a sum materially increased after the instrument had been signed.
Archers and Others v. Magistrates of Edinburg 1797 Statute, Fraud, Act of Parliament, Sequestration, Trust, Tax James and Andrew Archers, John Hardy, and William Younger, brewers operating within the precincts of Holyroodhouse, pursued the magistrates of Edinburgh and Alexander Thomson to contest the legality of a two-penny duty imposed on ale brewed and consumed in the Abbey, maintaining that the magistrates lacked authority to levy the tax within that jurisdiction. The brewers claimed total exemption from the duty, which the chargers subsequently challenged as legally unsound and unjust.
Ballantyne v. Malcolm 1793 Debt, Aliment, Succession, Defamation, Interlocutor, Fraud Alexander Malcolm, defender, petitioned against an interlocutor issued by Lord Monboddo in the action raised by Ballantyne, pursuer. Based on the single document cataloged for this case.
Bayne and Miller v. Wisheart-Belshes 1792 Succession, Aliment, Trustee, Reduction, Fraud, Cautioner Margaret Bayne and David Miller, baker in Perth, objected to the examination of James Dick Junior as a witness for Sir John Wisheart-Belshes in the process against him, arguing that Dick was disqualified by interest and relation. Based on the single document cataloged for this case.
Brown v. Dundas 1793 Adjudication, Statute, Fraud, Forfeiture, Penalty, Forgery Dundas, as defender, argued in an information that the statute under which Brown prosecuted them did not authorize the seizure of unstamped starch without prior notice or opportunity to comply. Based on the single document cataloged for this case.
Creditors for William Hunter v. David Armstrong and William Johnstone 1778 Bankruptcy, Creditor, Debt, Aliment, Fraud, Arrestment Creditors of the bankrupt William Hunter, joined by His Majesty’s Advocate, pursued David Armstrong, advocate, and William Johnstone, writer to the signet, as art and part guilty of Hunter’s fraudulent bankruptcy and the concealment of his effects following Hunter’s flight from Scotland in 1777. The pursuers alleged that the defenders had assisted in secret transactions and the hiding of assets to the prejudice of creditors, while Armstrong and Johnston denied complicity, maintaining they had acted on counsel and in good faith. The litigation proceeded through mutual condescendences, answers denying fraud, and repeated petitions and reclaiming petitions concerning the relevancy of proof and the Court’s interlocutors.
Duckett v. Williams 1832 Fraud, Insurance, Aliment, Thirlage, Policy coverage, Evidence
Faculty of Advocates v. Rae 1832 Bankruptcy, Debt, Fraud, Creditor, Arrestment, Sequestration The Dean and Faculty of Advocates opposed William Rae's admission to the Faculty on Trial, arguing that he should not be admitted to the Office of Advocate notwithstanding a remit previously granted in his favor. Rae answered the Faculty's allegations, defending his qualifications and right to admission against their opposition.
Folsetter and Wright v. Lord Justice Clerk's Interlocutor 1786 Apprentice, Contract, Theft, Interlocutor, Sequestration, Fraud William Folsetter and James Cobban petitioned the Court to alter the Lord Justice Clerk's interlocutor on the bills. Based on the single document cataloged for this case.
Gardiner, et al v. Andrews 1788 Debt, Aliment, Tack, Lease, Rent, Fraud Robert Gardiner, with the concurrence of Ebenezer Marshall and George Arnot, pursued Robert Andrew to have declared void a lease granted by Gardiner to Andrew, alleging that Gardiner had acted under incapacity and that the defender had procured the tack by fraud. Andrew defended the action, maintaining that the lease had been granted freely and voluntarily without undue practice or fraudulent conduct. The litigation proceeded upon competing memorials addressing the validity of the lease and the questions of Gardiner's capacity and Andrew's alleged fraud.
Gillespie and Company v. Milligain 1796 Contract, Fraud, Bankruptcy, Arrestment, Succession, Partnership William Gillespie and Company petitioned the Court of Session against Lord Stonefield’s interlocutor refusing a bill of advocation. Thomas Milligain answered, maintaining that he was a partner rather than a mere servant and denying the petitioners’ accusations as baseless and malicious.
Graham v. Gillespie and Company 1794 Debt, Fraud, Creditor, Bill of Exchange, Suspension, Onerous Indorsation Archibald Graham, cashier to the Thistle Bank, pursued William Gillespie and Company for payment of bills of exchange that had been materially altered after acceptance. Graham contended that the defenders remained liable for the raised amounts, while Gillespie and Company maintained that the bills, originally accepted for £58 10s. and £50, had been fraudulently raised to £458 10s. and £450 by William Robb without their knowledge or authority. The case turned on whether acceptors are bound to pay increased sums when bills have been fraudulently altered without their consent.
Home, et al v. Macknight 1797 Debt, Arrestment, Creditor, Jurisdiction, Bill of Exchange, Fraud The Common Agent in the Locality of Roxburgh filed answers on behalf of Macknight, defender, responding to objections by James Home of Carlfide and other pursuers to interlocutors concerning teind valuation and victual allocation. Based on the single document cataloged for this case.
Inglis v. Lord Stonefield's Interlocutor 1789 Fraud, Contract, Damages, Aliment, Interlocutor, Proof William Inglis presented a reclaiming petition asking the Court of Session to alter its interlocutor on damages for non-implementation of a bear-delivery agreement with Lord Stonefield. Based on the single document cataloged for this case.
James Goodfellow v. Andrew Madder 1785 Debt, Arrestment, Bill of Exchange, Sequestration, Tack, Fraud James Goodfellow charged Andrew Madder for payment of a bill. Madder alleged that the bill had been given for no value and sought to have Goodfellow judicially examined. Goodfellow contested Madder’s claim and argued that his allegation could only be proved by a writing.
John C. Farquharson v. John Thomson (Trustee of Mason, Baird, and Co.) 1832 Bankruptcy, Debt, Sequestration, Creditor, Trustee, Fraud
John Scougal v. Robert Young, and Others 1798 Insurance, Fraud, Reduction, Agent, Debt, Adjudication John Scougal sued Robert Young and the other underwriters for an unpaid average loss on flax and pot ashes damaged when the vessel ran aground, notwithstanding that most of the underwriters had already settled. The defenders argued that the insurance policy had not been ordered before the loss was known, and maintained that even if it had been, they were not deceived by any concealment.
Keltie v. Finlay 1776 Bill (Financial Instrument), Mala Fides, Expenses, Fraud, Class, Debt In January 1770, John Finlay granted a bill to James Beveridge. Shortly afterward he made a partial payment to Thomas Beveridge, who had possession of the bill. A note of this partial payment was marked on the bill, but five years later David Keltie, the bill's endorsee, sued Finlay for its full amount. By this point the bill had been torn and the receipt of partial payment was disfigured. Finlay thus accused Keltie of bad faith ("pessima fide") and fraud, and petitioned the Court to exempt him from paying any additional part of the bill. After Keltie produced the torn-off section of the bill, Lord Barskimming decreed that Finlay would only have to pay the remaining balance, but that he was responsible for expenses. Finlay petitioned the court to overturn this ruling, arguing that Keltie was responsible for the court fees, having unjustly pressed him for more money than was due. Keltie in turn argued that Finlay's inconsistent testimony was to blame for the unnecessary expenses. He claimed that much of the confusion arose from whether the receipt was denominated in pounds Scots or sterling. Keltie argued that he was right to have insisted in favor of pounds Scots: likening the suspender to "the lower sort of people in this country," he claimed that "people of inferior rank in Scotland, to this day, generally count in Scots, and not in Sterling money."
Kincaid v. Lord Justic Clerk's Interlocutor 1808 Sequestration, Bill of Exchange, Diligence, Oath, Cautioner, Fraud Kincaid sought suspension of a charge brought against him upon a bill, alleging that the drawer had already paid the debt and that the charger and drawer had fraudulently attempted to extort double payment. Based on the single document cataloged for this case.
M'Callum, et al v. Hunter, et al 1786 Debt, Fraud, Creditor, Insurance, Reduction, Sequestration The creditors of Kenneth M'Callum pursued Robert Hunter and other London underwriters to recover the sum insured on the ship *New York*. The underwriters alleged that the vessel had been wilfully destroyed by its owners to defraud them and resisted payment. The creditors maintained that the policy remained valid and that M'Callum bore no liability for the loss.
Mackies v. Houston and Others 1774 Deviation, Arrestment, Bill of Exchange, Insurance, Fraud, Adjudication Pursuers Alexander and John Mackies obtained insurance for their ship, the Marshall of Gardenston, and its cargo. Although the ship was bound for Dundee, it docked at Down (now known as Macduff) during the voyage, and the cargo was stolen by a mob. The pursuers applied to the insurance underwriters for indemnification and eventually brought suit against them. However, the underwriters argued that they were not required to pay because the ship-master had deviated from the insured voyage by going to Down and taking on cargo there. Relevant documents are reproduced in an appendix to the defenders’ court filing.
Macpherson, etc. v. Hannay 1800 Debt, Bankruptcy, Aliment, Fraud, Creditor, Succession Ramsay Hannay amassed a fortune while living in India and sent a considerable portion of his wealth to be managed by his brother, Sir Samuel Hannay, in Britain. Having collected nearly £50,000 of Ramsay’s funds, Sir Samuel granted him a heritable bond secured by all of Sir Samuel’s lands in Scotland. Ramsay did not take infeftment on the bond until after Sir Samuel’s death—that is, he did not complete the steps necessary to realize his interest, which are comparable to registering a deed. When Sir Samuel died, it was discovered that he had been insolvent for some time, including when he granted the bond to Ramsay. In a ranking and sale of his estate, the creditors objected that the bond gave Ramsay a fraudulent preference. However, the Court repelled the creditors’ objections, and the decision was affirmed in the House of Lords.
Marshall v. Taylor 1796 Bankruptcy, Trustee, Disposition, Creditor, Sequestration, Fraud James Marshall, Writer to the Signet and trustee, challenged a preference claimed by Taylor and Smith over the proceeds of the lands of Dubhall and Auld's Acre from a bankrupt estate, asserting that the bankrupt held no valid title at the time of the bond. After the Court sustained the respondents' claim by interlocutor, Marshall petitioned to have that decision altered. The respondents opposed the petition as an irregular and belated reclaiming motion, arguing it was barred by acquiescence and prior litigation.
McMinn v. His Creditors 1777 Cessio Bonorum, Prisoner, Fraud, Debt, Bankruptcy, Interlocutor Around June of 1777 John McMinn, late chapman in Kirkcudbright, was imprisoned in the Wigtown tolbooth for unpaid debts. He then brought a process of Cessio Bonorum to the Court of Session, and the Court granted him the benefit of the Cessio. In response, McMinn's creditors petitioned the Court to recall this interlocutor. They argued that there were a number of relevant facts that McMinn had withheld from the Court regarding his ability to pay his creditors. Furthermore, the petitioners argued against the supposed liberality with which chapmans were granted the Cessio. For example, while McMinn claimed to have lost his pocket-book in Ireland, the petitioners had recently discovered that while in Ireland McMinn had purchased 15 pounds worth of salt. For this reason, the creditors wrote, they decided to oppose McMinn's process of Cessio Bonorum. "Had the petitioners, upon looking into [McMinn's affairs], been convinced that the pursuer was a poor and unfortunate bankrupt, they would have been the last persons in the world who would have opposed his Cessio : But as this did by no means appear to them to be the case, they thought themselves bound to state those objections which occurred to his obtaining it.”
Messrs Aitchison, Brown, and Company v. Lord Monboddo's Interlocutor 1792 Bankruptcy, Debt, Intromission, Creditor, Proof, Fraud Messrs Aitchison, Brown, and Company petitioned the Court to alter Lord Monboddo's recent interlocutor. Based on the single document cataloged for this case.
Mrs Helen Scott v. Archibald and Jean Jerdons, and their Tutors and Curators 1784 Curator Bonis, Factor Loco Tutoris, Fraud Helen Scott, the niece of Archibald Jerdon, asked the court to investigate whether a curator bonis or factor loco tutoris (i.e., a legal guardian) should be appointed for Jerdon. As a matter of law, Jerdon opposed Scott’s request, but Scott alleged that the opposition had really been coordinated by a man seeking to take advantage of Jerdon in his old age. After Scott’s petition was granted, Jerdon sought further review, arguing that a man could not be divested of his affairs without a more rigorous proceeding commenced by a “brief of idiotry.”
Mustart v. Stonefield's Interlocuter 1794 Impress Service, Contract, Interlocutor, Interdict, Fraud, Collusion Alexander Muftart and John Muftart petitioned the Court of Session to alter its recent interlocutor in their case against Stonefield. Based on the single document cataloged for this case.
Richard Thomson v. Messrs Douglas, Heron, and Company 1785 Debt, Trust, Sequestration, Fraud, Reduction, Security Richard Thomson of Crowdieknowes transferred his lands to David Armstrong of Kirtleton "heritably and irredeemably," with the qualification that such lands should be sold for Thomson's benefit. Armstrong obtained a charter for the lands without recording the qualification. Armstrong subsequently conveyed the lands to Douglas, Heron, and Company to secure his own debt, and other creditors of Armstrong adjudged the lands. Thomson then initiated a court action to void Armstrong's right to the lands on the ground of fraud. Armstrong's creditors, including Douglas, Heron, and Company, appeared in the suit to defend their interest. Thomson argued that Armstrong held the lands in trust and therefore lacked the power to act as proprietor. In response, the creditors argued that they were entitled to rely on the relevant land records.
Richardson and Co v. Stoner, Hunter, and Ker 1783 Jettison, Debt, Aliment, Insurance, Interlocutor, Fraud This case was about apportioning liability for a cargo of salmon that was partially jettisoned and partially sold for a lower-than-expected price before reaching its planned destination. The owners of the salmon raised an action for damages against their underwriters, as well as the merchants who sold the salmon and the shipmaster-owner of the vessel; they argued that the shipmaster lacked authority to make the sale. The underwriters argued that although the relevant policy covered the jettisoned cargo, it did not apply to a partial loss such as the allegedly premature sale.
Robert Armour v. James Young 1774 Contract, Debt, Sale, Interlocutor, Aliment, Fraud Defender James Young ordered a quantity of superfine black cloth from pursuer Robert Armour, who routinely sold fabric at fixed prices on behalf of a merchant in Worcester. Armour claimed that the parcel of cloth that was delivered to Young included an invoice specifying the price. However, Young refused to pay that price, and Armour brought suit before the magistrates of Glasgow. Young objected that he never agreed to a particular price, and further claimed that coarse cloth was delivered to him instead of superfine cloth. The magistrates admitted proof regarding the price of the disputed articles, and Armour appealed. The Lord Ordinary not only affirmed the price-related proof, but also directed that proof be allowed regarding whether or not Young had “complained of the bad quality of the cloth recently after delivery thereof.” Armour once again sought review, arguing that the case should be decided based on questions of law.
Robertson v. Gray 1781 Fraud, Tack, Bankruptcy, Rent, Sequestration, Debt In this case, the trustees for the creditors of Richard Cameron asked the court to void a tack granted by Cameron to his brother-in-law Andrew Gray. The trustees alleged that Cameron had granted the tack while insolvent, and that he had agreed to a price that was lower than the land’s market value. Andrew Gray, the tacksman, disputed these points. He further argued that the tack was necessary because Cameron had planned to go to Virginia. Case documents include a proof containing numerous depositions.
The York-Buildings Company v. Alexander Mackenzie 1784 Sale, Debt, Sequestration, Trustee, Creditor, Fraud The York-Buildings Company, as pursuers, sought reduction of the sale and damages against Alexander Mackenzie, Writer to the Signet, alleging that he had fraudulently purchased Seton lots through a collusive sale process in 1777. Mackenzie defended the regularity of the sale and resisted reduction. The parties subsequently exchanged petitions and answers concerning interlocutors on the reduction, and the Company later sought price reduction based on Mackenzie’s alleged fraudulent conduct as a common agent, which Mackenzie disputed along with the scope of his replies and the Court’s reliance upon them.
Walpoles v. John Walker 1778 Reduction of a Trust Deed, Fraud, Commission of Bankruptcy In England, Arrestment, Sequestration, Trustee This case concerns a trust disposition granted by William Alexander to John Walker in September 1775, shortly before an English commission of bankruptcy was awarded against the former. The largest English creditors of William Alexander held mortgages on two Grenada estates jointly owned by him and his brother. They brought an action to have the above-mentioned trust-deed reduced. In January of 1778 Lord Monboddo assoilzied (absolved) the defender. The pursuers petitioned the Court to alter this decision. They argued that the trust was voided by a petition for a sequestration brought before Lord Gardenstone by William Alexander in April 1777. In addition, the pursuers argued that the trust-deed failed under the statutes 1621 (relating to conjunct and confident persons) and 1696 (regarding diligence), "or, at least, that they ought, without hesitation, to be reduced, on the head of fraud, at common law." Regarding this charge of fraud, the pursuers claimed that they had an indisputable claim to the proceeds of the Grenada plantations, but that the Alexander brothers, aided by the defender, went through elaborate lengths to conceal these profits from their creditors. They further accused William Alexander of sending his trunk of papers to Edinburgh, so as to prevent the pursuers from discovering this fraud. The Court altered Lord Monboddo's interlocutor, sustaining the reasons of reduction. William Alexander then petitioned the Court to alter this interlocutor, which it refused. Similarly, the defender petitioned the Court to either allow the trust to subsist in the person of another trustee, or to declare as bona fide his prior actions as trustee.

The circumstances surrounding this case are covered extensively in Jacob M. Price, France and the Chesapeake. In particular, see volume 2, pages 691-700.
Wood and Mason v. Skene 1776 Extortion, Fraud, Debt, Arrestment, Bill of Exchange, Sequestration In November 1776, James Robertson hired Alexander Morison to arrest James Wood, who owed him about £20. Morison later hired John Skene to retrieve the money, and Skene had Wood incarcerated in the Leith tolbooth. The next day Wood was released after conveying seven shillings to his jailor "for what was called jail-fees"; and to Skene £4 in cash and a conjunct bill with his brother-in-law, Andrew Mason, for £16. Wood also informed Skene that he had earlier paid Robertson about £1 for the expenses of diligence, and Skene answered that he would grant a receipt for this amount once a voucher was produced. Wood and Mason later brought a complaint against Skene before the Court of Session on the basis that he had requisitioned from them more than what was owed, and that he had failed to return the principal bill. Claiming that part of the money paid to Skene had been to cover his own fees, they accused him of transgressing an essential duty of his office as messenger-at-arms. To support this accusation they cited the Court's 1738 decision in Monro v. Ross, which had later been ingrossed in the books of Sederunt and of the Lyon-court, forbidding messengers from extracting their fees from the object of their diligence. Skene responded that none of the money he had extracted from the pursuers had been to cover his own fees, and that he had not returned the principal bill at the time because it was not in his possession. Handwritten marginalia on the Petition and Complaint observes "It does not appear how this case was disposed of, but the Answer to the Petition seems satisfactory." The Court's decision regarding the ten shillings paid to cover the fees of Alexander Morison are not brought up in these case documents.

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