Scottish Court of Session Decisions

This was an action of damages at the instance of James Logan, lately wood merchant, Wester Mugdock, near Milngavie, against John Weir, lately farmer at Wester Mugdock. The pursuer concluded for £1000 damages (in all) on two distinct grounds—1st, judicial slander; 2d, breach of contract. The circumstances out of which the action arose were as follows:—

By lease, dated 3d March 1859, William Brown let to the defender's father, the late James Weir, the farm of Wester Mugdock for nineteen years, from Martinmas 1859. The lease contained a clause reserving power to either party to terminate the same at the end of ten years from the commencement thereof, by giving notice in writing to the other party at least three months prior to Martinmas 1867. Assignees and sub-tenants were excluded, without the landlord's consent in writing.

At Whitsunday 1861 James Weir let to the pursuer a house and piece of ground forming part of the farm of Wester Mugdock. The pursuer continued to occupy the subjects from year to year till August 1867, when the defender, who had succeeded to the lease of the farm of Wester Mugdock on the death of his father in 1865, granted to the pursuer the following holograph missive of lease:—“ Mugdock, 9 th August 1867.

I, John Weir, do hereby let to James Logan a house and stables, and byre, garden, £7, 10s., for a lease of, to the end of my lease. “I, John Weir.”

According to the averment of the pursuer, the defender stated to him that the missive would ensure possession of the subjects for eleven years to come, and on the faith of the missive the pursuer executed certain improvements on the premises.

On 25th March 1869 the defender raised an action of removing against the pursuer in the Sheriff-court of Stirlingshire, to have him decerned to remove at Whitsunday 1869. In answer the pursuer founded upon the missive of lease. The Sheriff Substitute decerned against the pursuer (Logan), and the Sheriff adhered.

The decree of removing was brought under review of the Court of Session by a note of suspension, which was passed upon juratory caution. The result of the litigation was that it was found by the Lord Ordinary ( Mure) that the missive constituted an effectual lease, and his Lordship accordingly suspended the threatened charge of removing. This interlocutor became final.

In the condescendence in the Sheriff-court, and also in the answers to the note of suspension in the Court of Session, Weir denied that the missive in question was in his handwriting, but in the course of the proceedings in the Court of Session he put in a minute consenting that the case should be disposed of on the footing that the missive was genuine, and holograph of and signed by him.

In July 1869 Mr Brown, the proprietor of Wester Mugdock, intimated to Weir his intention of taking advantage of the break in the lease, and gave him notice to remove himself and his sub-tenants. Weir afterwards took a lease of the farm for a year, from Martinmas 1869.

The pursuer averred that this was part of a collusive and fraudulent scheme between the landlord and the defender to render nugatory the missive of lease granted by the latter to the pursuer.

On 30th June 1871 Mr Brown presented a petition to the Sheriff for the ejection of the pursuer from the subjects. The pursuer intimated to the defender that he looked to him to protect him in possession of the subjects, and would hold him liable in damages in the event of his being ejected. Decree of ejection was pronounced on 7th July

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1871, which was not brought under review, and on 12th September the pursuer quitted the premises.

The pursuer now raised the present action of damages, on the ground (1) that the defender had falsely and calumniously represented in the proceedings referred to that the pursuer had fabricated, or caused to be fabricated, the missive of lease which had been produced and founded on by him, or at least that he had used the same knowing it to be fabricated; (2) that the defender, by granting the missive, and otherwise, having undertaken that the pursuer should not be disturbed in the possession of the subjects till Martinmas 1878, was bound to make reparation to the pursuer for the loss sustained by him through his being ejected.

The Lord Ordinary ( Mure) allowed the pursuer two issues, the first on the question of slander, the second in the following terms:—

“Whether, on or about the 9th day of August 1867, the defender undertook to give the pursuer possession till Martinmas 1878 of the subjects at or near Wester Mugdock, which at the date of said missive were tenanted by the pursuer; and whether the defender failed to implement his said undertaking, to the loss, injury, and damage of the pursuer?” Damages claimed under each issue £500.

The defender reclaimed.

Watson and Balfour, for him, argued that there was no relevancy in the pursuer's statements to entitle him to the second issue.

Solicitor-General and Rhind for the pursuer.

The Court having intimated that the construction of the missive was a question for the Court, and not for a jury, parties were heard thereon.

At advising—